- Corporate Governance Practices and New Market
- Regulation of the Brazilian Securities Market
- Disclosure and Use of Information
In 2000, the São Paulo Stock Exchange (B3) introduced three special listing segments, known as Levels 1 and 2 and the New Market (Novo Mercado) Differentiated Corporate Governance Practices, aimed at fostering a secondary market for securities issued by publicly held Brazilian companies listed on the B3 that adopt best corporate-governance practices. These listing segments were designed to trade shares issued by companies voluntarily undertaking to abide by corporate-governance practices and disclosure requirements in addition to those already imposed by Brazilian law. These rules generally increase shareholders’ rights and enhance the quality of information provided to shareholders.
To be listed on the New Market, in addition to the obligations imposed by current Brazilian law, an issuer must also meet all of the following requirements:
- Share Capital must consist only of common voting shares;
- Same conditions provided to majority shareholders in the transfer of the Company’s Control will have to be extended to all shareholders (100% Tag Along);
- Setting up of Internal Auditing and Compliance department as well as an Audit Committee (Statutory or Non-statutory);
- In case of delisting from Novo Mercado, holding of a Public Tender Offer (PTO) for a fair price, with minimum acceptance quorum of 1/3 of the free float shareholders;
- Board of Directors must be composed of, at least, 2 or 20% of independent directors (whichever is greater), with unified term of office of at most 2 years;
- Listed companies commit to maintain a free float of, at least, 25% or 15%, in case of ADTV (average daily trading volume) above R$25 million;
- Structuring and disclosure of a process of assessment of the board of directors, its committees and the executive officers;
- Elaboration and disclosure of the following policies: (i) Compensation Policy; (ii) Nomination Policy of the Board of Directors, Advisory Committees and Executive Management Board; (iii) Risk Management Policy; (iv) Related Party Transaction Policy; and (v) Securities Trading Policy, with minimum requirements (except for the Compensation Policy);
- Simultaneous disclosure, in Portuguese and English, of Material Information, benefit distribution information and results press releases;
- Mensal disclosure of the negotiations, by the controlling shareholders, with securities issued by the company.
The Brazilian securities markets are regulated by the CVM, which has regulatory authority over the stock exchanges and securities markets, by the National Monetary Council and by the Central Bank, which has, among other powers, licensing authority over brokerage firms and regulates foreign investment and foreign exchange transactions. The Brazilian securities markets are governed by the principal law governing the Brazilian securities markets, by the Brazilian Corporation Law, and by regulations issued by the CVM, the CMN and the Central Bank. These laws and regulations provide for, among other things, disclosure requirements, restrictions on insider trading and price manipulation and protection of minority shareholders. However, the Brazilian securities markets are not as highly regulated and supervised as U.S. securities markets.
Under the Brazilian Corporation Law, a company is either publicly held and listed, a “companhia aberta”, or privately held and unlisted, a “companhia fechada”. All listed companies are registered with the CVM and are subject to reporting and regulatory requirements. To be listed on the B3, a company must apply for registration with the B3 and the CVM and is subject to regulatory requirements and information publishing requirements.
A company registered with the CVM may trade its securities either on the Brazilian exchange markets, including the B3, or in the Brazilian over-the-counter market. Shares of companies listed on the B3 may not simultaneously trade on the Brazilian over-the-counter market. The shares of a listed company may also be traded privately, subject to several limitations.
The Brazilian over-the-counter market, whether or not organized, consists of trades between investors through a financial institution registered with the CVM, and authorized to trade in the Brazilian capital market. No special application, other than registration with the CVM, is necessary for securities of a public company to be traded in the non-organized over-the-counter market. The CVM must receive notice of all trades carried out in the Brazilian over-the-counter market by the respective intermediaries.
The trading of securities on the B3 may be suspended at the request of a company in anticipation of a material announcement. Trading may also be suspended on the initiative of the B3 or the CVM, among other reasons, based on or due to a belief that a company has provided inadequate information regarding a significant event or has provided inadequate responses to inquiries by the CVM or the B3.
Pursuant to CVM Rule # 358, of January 3, 2002, the CVM revised and consolidated the requirements regarding the disclosure and use of information related to material facts and acts of publicly held companies, including the disclosure of information in the trading and acquisition of securities issued by publicly held companies.
- Such requirements include provisions that:
- establish the concept of a material fact that gives rise to reporting requirements. Material facts include decisions made by the controlling shareholders, resolutions of the general meeting of shareholders and of management of the Company, or any other facts related to the Company’s business (whether occurring within the Company or otherwise somehow related thereto) that may influence the price of its publicly traded securities, or the decision of investors to trade such securities or to exercise any of such securities’ underlying rights;
- specify examples of facts that are considered to be material, which include, among others, the execution of shareholders’ agreements providing for the transfer of control, the entry or withdrawal of shareholders that maintain any managing, financial, technological or administrative function with or contribution to the Company, and any corporate restructuring undertaken among related companies;
- oblige the officer of investor relations, controlling shareholders, other executive officers, members of its board of directors, members of the audit committee and other advisory boards to disclose material facts;
- require simultaneous disclosure of material facts to all markets in which the corporation’s securities are admitted for trading;
- require the acquirer of a controlling stake in a corporation to publish material facts, including its intentions as to whether or not to de-list the corporation’s shares, within one year;
- establish rules regarding disclosure requirements in the acquisition and disposal of a material stockholding stake; and
- restrict the use of insider information.